Appeals against a tree replacement notice

A tree replacement notice is the enforcement end of a duty most landowners never knew they had. Where a tree protected by a Tree Preservation Order is removed in contravention of the order, or is removed because it was dead or presented an immediate risk, section 206 of the Town and Country Planning Act 1990 imposes a duty on the landowner to plant another tree of appropriate size and species at the same place, as soon as reasonably practicable. If that does not happen, section 207 lets the authority serve a notice requiring it.

The notice is appealable under section 208, and the appeal must be made before the notice takes effect. That is the first thing to check on receipt, because the window is short and missing it leaves the notice in force with no route back.

What the notice can require

A tree replacement notice can require the planting of a tree of a specified size and species, at a specified place, within a specified period. It cannot require anything beyond the replacement duty: no fence, no landscaping scheme, no compensation payment.

The notice must specify a period, not less than twenty-eight days from service, at the end of which it takes effect. The compliance period for the planting itself is separate and is normally stated in the notice as a season or a number of months.

The duty runs with the land. Section 206 attaches to the owner of the land for the time being, so a purchaser who bought after the tree was felled can be served and can be required to plant. That is a point to raise on acquisition, since a replacement liability does not show up on a standard search unless a notice has already been served and registered as a local land charge.

Where the tree stood in a conservation area and was removed without the required notice to the authority, an equivalent replacement duty applies, enforced in the same way.

The grounds of appeal in section 208

The grounds are prescribed, and an appeal arguing something outside them will fail however reasonable it sounds. In substance they are:

1. That the duty under section 206 does not apply, or has been complied with.
2. That the requirements of the notice are unreasonable in respect of the period allowed for compliance, or the size or species of trees specified.
3. That the planting of a tree in accordance with the notice is not required in the interests of amenity, or would be contrary to the practice of good forestry.
4. That the place on which the tree is required to be planted is unsuitable for that purpose.

Notice what is missing. Cost is not a ground. Inconvenience is not a ground. The fact that you did not fell the tree yourself is not a ground in itself, because the duty attaches to the owner rather than to the person who did the work.

Appeals go to the Secretary of State and are handled by the Planning Inspectorate, usually by written representations. Evidence matters more than argument: a planting plan, a soil assessment, a services drawing, an arboricultural opinion.

Arguing that the duty does not apply

This is the strongest ground where the facts support it, and there are four versions of it worth testing against the file.

The tree was not protected. Orders are specific about which trees they cover, and area orders, group designations and individual entries all behave differently. Obtain a copy of the order and its plan from the authority and check what was actually included, since the boundaries of an area order drawn in the 1970s are often imprecise.

The tree was removed lawfully under an exemption, for example because it was dead or because work was urgently necessary to remove an immediate risk of serious harm, with the required notice given. Keep in mind that the exemption removes the offence and does not always remove the replacement duty, so this ground usually needs to be run alongside ground three.

The tree was removed with consent, and the consent did not carry a replanting condition. Check the decision notice.

Or the duty has already been complied with, because a tree of appropriate size and species was planted at the same place. Photographs with dates, an invoice from the nursery and a planting specification are what settles this one.

Species, size and position disputes

These are the appeals most likely to succeed in part, and they turn on site facts rather than on policy.

Size is a frequent dispute because authorities sometimes specify a heavy standard or an extra heavy standard where establishment on a dry, compacted or shallow soil would be poor. A smaller nursery stock size often establishes better and reaches a given canopy sooner, and an arboricultural opinion saying so is persuasive. Species disputes work the same way: a specified species unsuited to the soil pH, the exposure or the available rooting volume is a legitimate target.

Position disputes rest on physical constraints. Underground services with standard clearance requirements, proximity to a building foundation, a drainage run, an access visibility splay, or a highway sightline. Produce the services drawing rather than describing the problem, and propose an alternative position on a plan. Inspectors are far more willing to vary a notice than to quash one, and offering a workable alternative makes variation easy.

An up-to-date tree survey of the site, showing existing trees, canopy spread and the constraints, is the document that makes all three of these arguments concrete.

Time for compliance

Planting seasons are the honest basis for an extension. Bare-root stock is planted in the dormant season, and a notice requiring planting in July either forces container stock at higher cost and lower establishment rates, or forces non-compliance.

Say that plainly in the appeal, with the species and stock type named, and propose a date. Authorities quite often agree before the appeal is determined, in which case the appeal can be withdrawn and the matter closed.

Where the delay is about getting a contractor rather than about the season, the ground is weaker. Evidence of actual attempts, with dates and quotes, is the only version that works.

What happens if you ignore it

If the notice takes effect and the planting does not happen, the authority may enter the land, plant the trees itself, and recover its reasonable expenses from the owner. There is no need for a prosecution and no further notice to challenge.

That makes non-compliance an expensive form of delay, since the authority's costs will include its own supervision and will not have been tendered competitively. The separate criminal liability for the original unauthorised felling sits alongside this, and the two are dealt with independently.

Negotiating before service

Most replacement disputes should be settled before a notice exists. The tree officer wants a tree in the ground and generally has a view on species and position that is negotiable if you engage early with a proposal.

Write with a plan: species, stock size, position, planting season, aftercare for the establishment period, and who will water it. Offer a position that works for the site and explain why the officer's preferred position does not. An agreed replacement avoids the notice, the appeal, the six-month timetable and the risk of the authority doing the work at your expense. Our note on reading a refusal notice and turning it into a plan applies the same approach to a different notice, and the discipline is identical: answer the document in front of you, point by point.

If an appeal does become necessary, the procedure and timetable will feel familiar to anyone who has followed a planning appeal, as described in what happens once an appeal starts.

This is general guidance, not legal advice; check the position with your local planning authority or a qualified professional before relying on it. Browse the 66 PlanScope report types to see which arboricultural documents a planning submission usually needs.